Roe v. Wade could hinge on election

Abortion rights at key juncture; Democrats, GOP keep issue at bay

Archbishop of Washington Donald Wuerl walked with Chief Justice John Roberts after the celebration of the annual Red Mass in St. Matthew Cathedral in Washington yesterday. The Mass commemorates the beginning of a new term of the Supreme Court.
(Joshua Roberts/ Reuters)

WASHINGTON - Every four years, defenders of abortion rights proclaim that the fate of Roe v. Wade hangs on the outcome of the presidential election. This year, they might be right.

Through most of the 1990s and until recently, the Supreme Court had a solid 6-to-3 majority in favor of upholding the right of a woman to choose abortion. But the margin has shrunk to one, now that Justice Sandra Day O'Connor has retired and been replaced by Justice Samuel A. Alito Jr.

And Justice John Paul Stevens, a leader of the narrow majority for abortion rights, is 88 years old.

"Clearly, Roe is on the line this time," says Indiana University law professor Dawn Johnsen, formerly a lawyer for NARAL Pro-Choice America. "It is quite clear they have four votes against it. If the next president appoints one more, the odds are it will be overruled."

Some advocates worry that the perennial cries of "Roe is falling" have had the effect of muting such assertions.

"What we find scary is that people don't understand what's at stake," says Kathryn Kolbert, president of People for the American Way. "In the next four years, one to as many as three Supreme Court justices may step down, and they all will come from the liberal end of the court."

But that doesn't mean abortion or the fate of the Roe decision is a rallying cry on the campaign trail for either Democrats or Republicans. The two parties have staked out opposite positions, but their candidates rarely mention them when campaigning.

The abortion issue is enormously important to the base of both parties, political strategists say, but it is a touchy and difficult matter to raise with an audience of swing voters and those who are undecided.

When Senator John McCain was considering his choices for a running mate, conservative activists threatened a rebellion at the GOP convention in St. Paul if he chose a supporter of abortion rights. Instead, McCain galvanized his support with conservative activists when he chose Governor Sarah Palin of Alaska, who opposes abortion even in cases of rape and incest.

McCain believes Roe v. Wade must be overturned, but he and his Democratic opponent, Senator Barack Obama, don't campaign on the issue.

Obama has called himself a strong supporter of abortion rights. But he also told NARAL Pro-Choice America he believes the nation should work to reduce the number of unintended pregnancies.

Polls show the American public remains closely split on abortion. Most respondents say they favor legal abortion, with some restrictions.

When the Supreme Court opens its term today, abortion will not be on the docket. The justices generally have steered away from abortion-related disputes in recent years, and they remain closely and bitterly divided on the issue.

Four justices - Ruth Bader Ginsburg, David H. Souter, Stephen G. Breyer, and Stevens - consistently have supported the right to abortion, and they have voted to strike down restrictions.

Justices Antonin Scalia and Clarence Thomas have said Roe v. Wade should be overturned, leaving the states or Congress to decide the abortion issue.

Chief Justice John G. Roberts Jr. and Alito served as young lawyers in the Reagan administration, which was committed to reversing Roe. And since joining the court, they voted to uphold the federal Partial-Birth Abortion Ban Act.

Positioned in the middle, Justice Anthony M. Kennedy has supported strict regulation of abortion, but he has opposed a ban.

If Stevens or Ginsburg were replaced by a staunch conservative, that would tip the majority against abortion rights. It is not certain, however, that Roberts and Alito would join Scalia and Thomas in pressing to overrule the right entirely.

Some conservative lawyers agree that a McCain victory would only set the stage for overruling Roe. Regardless of who wins the White House, Democrats probably will maintain a majority in the Senate, and they could block a staunchly conservative McCain nominee to the Supreme Court.

"I think the consensus is Roe will fall slowly and incrementally, not in one decision," says Wendy Long, a former clerk for Thomas and counsel to the Judicial Confirmation Network, which was formed to support President Bush's nominees. "And the day after Roe is reversed, abortion still will not be illegal," she added, as many states would not outlaw it.